Category Archives: Tort Reform

Governor Quinn recently signed Public Act 97-1145 into law, changing one big thing and clarifying another big issue in Illinois medical malpractice cases.

First, attorneys fees on medical malpractice cases are now capped at 33 1/3% of the total recovery. There had previously been lower caps as case values increased. This is important for all attorneys to pay attention to for new or future cases. I think it’s a good thing, as med mal cases tend to be the toughest, longest, and most expensive cases personal injury lawyers handle.

The act finally codifies the current version of the 2-622 expert certification requirement:

(735 ILCS 5/2-622)(from Ch. 110, par. 2-622)

Sec. 2-622. Healing art malpractice.

(a) In any action, whether in tort, contract or otherwise,

in which the plaintiff seeks damages for injuries or death by

reason of medical, hospital, or other healing art malpractice,

the plaintiff's attorney or the plaintiff, if the plaintiff is

proceeding pro se, shall file an affidavit, attached to the

original and all copies of the complaint, declaring one of the

following:

1. That the affiant has consulted and reviewed the

facts of the case with a health professional who the

affiant reasonably believes: (i) is knowledgeable in the

relevant issues involved in the particular action; (ii)

practices or has practiced within the last 6 years or

teaches or has taught within the last 6 years in the same

area of health care or medicine that is at issue in the

particular action; and (iii) is qualified by experience or

demonstrated competence in the subject of the case; that

the reviewing health professional has determined in a

written report, after a review of the medical record and

other relevant material involved in the particular action

that there is a reasonable and meritorious cause for the

filing of such action; and that the affiant has concluded

on the basis of the reviewing health professional's review

and consultation that there is a reasonable and meritorious

cause for filing of such action. If the affidavit is filed

as to a defendant who is a physician licensed to treat

human ailments without the use of drugs or medicines and

without operative surgery, a dentist, a podiatrist, a

psychologist, or a naprapath, the written report must be

from a health professional licensed in the same profession,

with the same class of license, as the defendant. For

affidavits filed as to all other defendants, the written

report must be from a physician licensed to practice

medicine in all its branches. In either event, the

affidavit must identify the profession of the reviewing

health professional. A copy of the written report, clearly

identifying the plaintiff and the reasons for the reviewing

health professional's determination that a reasonable and

meritorious cause for the filing of the action exists, must

be attached to the affidavit, but information which would

identify the reviewing health professional may be deleted

from the copy so attached.

(Howard Zimmerle is a medical malpractice lawyer in the Quad Cities of Illinois and Iowa. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

Interesting new article in the Wall Street Journal today about steps doctors and hospitals are taking to try to reduce the number of serious mistakes. There are some interesting statistics in the articles, including one from a Johns Hopkins study noting that diagnostic errors kill 40,000 to 80,000 hospitalized patients annually.

One of the interesting things I’ve found in articles like this is how so many quotes are couched in terms of “reducing medical malpractice claims” rather than “reducing the number of people killed or seriously injured due to mistakes”. This article has a little of both.

For those who don’t think medical malpractice lawsuits do any good, consider the fact that they seem to be a motivating factor in efforts to reduce medical errors. That’s good!

(Howard Zimmerle is a medical malpractice and nursing home malpractice attorney in the uad City area, including Rock Island, Moline, Davenport, Bettendorf and surrounding areas. He can be reached at 309-794-1660 or hzimmerle [at] mjwlaw.com)

It’s true here in the Quad Cities and across the nation – nursing homes are often understaffed, overfilled, and the workers often abuse and/or neglect their residents. One of my goals as a lawyer is to do my part to reduce nursing home abuse and neglect by holding the nursing homes responsible in court.

The State of Illinois is doing its part (or at least something). Governor Quinn appointed a task force to learn what causes substandard care to elderly nursing home residents. The full report is here – but some of my notes are below the fold:

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This is the third time Illinois’ highest court has ruled that artificial caps on medical malpractice damages are unconstitutional.

It makes sense, right? Who would you rather have decide your case – some politicians in Washington or Springfield who don’t know any of the facts, or 12 people from your community who have had the chance to hear and discuss all of the evidence? It should be a no brainer.

More on this opinion when I get the chance to read it.

(Howard Zimmerle is a medical malpractice attorney in the Quad Cities).

Other than his fantastic use of alliteration, I thought “What a nutball, how did this guy ever get elected?”

According to the article linked above, the lawsuit was filed “to fight possible laws restricting the filing of frivolous lawsuits.” So let me get this straight – to prove that the courthouse doors should stay open, his plan is to do something idiotic that helps the tort reform point.

Which makes me think What a nutball, how did this guy ever get elected?”

I guess the only question now is who God hires for his defense counsel. I think that’d look amazing in a Martindale.com profile: Representative clients – Wells Fargo, State Farm, God…

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Here’s an 8 minute video on YouTube exposing some of the truths about the tort reform movement… no huge new ground here, but if you’re out of the loop, some of the highlights are:

1. The US Chamber of Commerce and the Tobacco Companies were responsible for the tort reform movement;

2. The McDonalds coffee case was more serious than people knew (ie the coffee was 180 degrees, McDonalds knew it would scald people, the woman needed a hospital stay and skin grafts, and after an appeal she only got a small settlement).

It also briefly discusses one of my favorite people… the DC pants idiot. Enjoy!

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Disciplinary Investigation Called for in Dry Cleaners Case(
Washington, DC)— The American Association for Justice (AAJ) today called for a disciplinary investigation of District of Columbia Administrative Law Judge Roy Pearson Jr., who brought a $65 million lawsuit against a family-owned dry cleaning business for losing his pants. (A copy of AAJ CEO Jon Haber’s letter is below.) In his letter, Haber stated: “Our court system has no place for those who abuse the instruments of justice for personal gain or the intimidation of others.”In addition to the call for an investigation, AAJ President Lewis S. “Mike” Eidson stated “As attorneys who are committed to helping Americans receive justice throughout courts, we are outraged by the very idea of a $65 million claim over a pair of pants. It is not only ridiculous – it is offensive to our values.”Eidson and Haber have also personally pledged to contribute to a defense fund established to support the dry cleaners. In a message to AAJ board members today (below), Eidson emphasized that the unique nature of this case should not be used to undermine the important role of the nation’s civil justice system. “This case is clearly atypical and we cannot allow those who oppose us on fundamental issues of access to the civil justice system to turn this case into an indictment of that system,” said Eidson. “Our mission continues to be to ensure Americans have a level playing field in our courtrooms – even when it means taking on the most powerful corporations.”

Jon Haber letter to District of Columbia Bar Association May 8, 2007Mr. James SandmanPresident District of Columbia Bar Association

1250 H St. NW

, Sixth FloorWashington DC
20005Dear Mr. Sandman: As a member of the District of Columbia Bar, I believe that the widely reported actions of Mr. Roy Pearson, Jr. in pursuing a $65 million dollar lawsuit against a local dry cleaning business appear to constitute a serious abuse of the civil justice system and warrant a disciplinary inquiry from the Bar. Media reports indicate that Mr. Pearson, an administrative law judge and member of the District of Columbia Bar has relentlessly pursued his lawsuit against Custom Cleaners, a family-owned dry cleaner, for temporarily misplacing a pair of his suit pants. Despite an apparently generous settlement offer that includes the return of the once-missing suit pants, news reports indicate that Mr. Pearson has maintained his action over a two-year period, filed thousands of pages in documents and made damage claims that appear to be farfetched and unjustified. Moreover, it appears that Mr. Pearson’s actions in this matter are consistent with his behavior in prior legal disputes, where he has followed courses of action both that appear both vexatious and disproportionate to any legitimate claim.The American civil justice system ought to be a point of pride, both to the public and the profession. It enables those who, in good faith, believe that they have been wronged to pursue justice and have an impartial tribunal resolve responsibility. Only in such a courtroom can everyone – regardless of wealth, connections or political clout – stand on a level playing field of justice.

Our court system has no place for those who abuse the instruments of justice for personal gain or the intimidation of others, rather than just compensation. That Mr. Pearson occupies a position of public trust as an administrative law judge, in addition to his membership in the Bar, further intensifies the dishonor that his apparent actions have cast on both the system and the profession. As attorneys, we have a special obligation to preserve the integrity of our civil justice system. Our commitment must be to strengthening the civil justice system so that deserving individuals can get justice, wrongdoers are held accountable, and efforts to weaken basic legal protections are repelled. For actions inconsistent with the oath and office of our learned profession, I urge that the District of Columbia Bar investigate this matter and take appropriate disciplinary action.Sincerely,Jon HaberChief Executive Officer, American Association for Justice

Lewis S. “Mike” Eidson message to American Association for Justice Board of GovernorsDear American Association for Justice Board Member:Let me bring you up to speed on the latest on the family-owned dry cleaner in
Washington, DC, being sued for $65 million over a pair of pants. First, I want to repeat what I said Friday: As attorneys who are committed to helping Americans receive justice throughout courts, we are outraged by the very idea of a $65 million claim over a pair of pants. It is not only ridiculous – it is offensive to our values. Today, Jon Haber, AAJ CEO and DC Bar Association member, has sent a letter to the Bar calling for a disciplinary investigation ofAdministrative Law Judge Roy Pearson Jr. in light of his actions in pursuing this case. A copy of Jon’s letter is attached. I am also personally making a contribution to the plaintiff’s defense fund, as is Jon. If you wish to contribute, the fund can be found at www.customcleanersdefensefund.comHowever, I continue to believe that the news media is sensationalizing this case beyond reasonable bounds. This case is clearly atypical and we cannot allow those who oppose us on fundamental issues of access to the civil justice system to turn this case into an indictment of that system. Our mission continues to be to ensure Americans have a level playing field in our courtrooms – even when it means taking on the most powerful corporations. Lewis S. “Mike” Eidson
President, American Association for Justice

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